Jones v. United States

535 A.2d 409, 1987 D.C. App. LEXIS 512, 1987 WL 31229

Opinions

STEADMAN, Associate Judge:

Appellant contests his conviction for two counts of armed robbery and one count of assault with intent to rob. His principal argument involves Jencks Act issues.¹

He asserts that (1) the trial court erred in its refusal to find that the government was “grossly negligent” in the loss or destruction of materials producible under the Jencks Act, 18 U.S.C. § 3500 (1985); and (2) even if the government committed no more than simple negligence, the trial court abused its discretion in its choice of sanctions. Finding no error, we affirm.

I.

The events underlying appellant’s conviction took place on the evening of March 9, 1982, when Sylvia Williams and two employees, Virgil Copeland and Randy Evans, were working at Williams' store. Two men, later identified as appellant and his co-defendant, entered the store and at gunpoint robbed the store, including taking property from Williams and Melvin Beach (a customer who entered the store during the robbery). At trial, appellant was convicted principally on the basis of eyewitness identifications made by those who were in the store on the night of the robbery.

Prior to trial, it became apparent during the identification suppression hearing that a problem existed with respect to the loss or destruction of three items of evidence, normally available to the defense as Jencks Act material. Specifically, the government was unable to produce the notebooks of two of the investigating officers, Stowe and Bradley, containing original notes of their investigations into the robbery. Bradley had taken notes of interviews the evening of the crime with Williams and Evans, wherein each had described the robbers.² Stowe’s notebook contained notes of Copeland’s descriptions of the robbers made that evening as well as statements by the three witnesses made at a later date when they examined a photo array which included appellant’s picture. Stowe testified at the pretrial hearing that he had concluded he lost the notebook while investigating an unrelated altercation, when he jumped out of the car and gave chase to someone.³ The third item of unavailable evidence was a recording of Williams’ call to the emergency police number in which Williams had described appellant. The record had been destroyed sixty days after the crime pursuant to then administrative routine.

Ruling immediately prior to the commencement of the trial,⁴ the trial court determined that as a sanction for the non-production of the lost items, the use of the photo array by the government would be limited and an instruction would be given regarding the missing items with a variant of the “missing witness” instruction.⁵ In so doing, he made an explicit determination that the loss of Stokes’s notes was not due to gross negligence or bad faith on behalf of the government.

At the time of that ruling, the trial court knew that the Bradley notes were probably lost and by our reading of the record considered the prejudicial effect of such loss on the defendants in dealing with the identification issues, including the crime-scene descriptions.⁶ The trial court did not know the details surrounding the loss of the Bradley notes. That information came out during the course of Bradley’s testimony during the defense case.⁷ However, although the subject of the lost notes had been raised at various points during the trial⁸ and the sanction of the missing witness instruction was still to come, neither the trial court nor any party questioned the adequacy of the sanctions following Bradley’s testimony.⁹ Indeed, during the discussion about jury instructions, when appellant’s counsel referred to the lost notes of both Stowe and Bradley, the trial court interrupted to remark that it had ruled that no gross negligence or bad faith was involved and reasserted the elements of the sanctions it had decided upon. We therefore conclude that on the record as a whole, the trial court may be fairly deemed to have implicitly found that the unavailability of the Jencks material was due to no more than ordinary negligence¹⁰ and the sanctions effectively imposed on that basis.

II.

Appellant disputes both the failure to find “gross negligence” and the limited nature of the sanctions imposed by the trial court. Determination by a trial court regarding the degree of negligence involved in the loss of Jencks material is a finding of fact which we will not disturb on appeal unless “clearly erroneous.” Johnson v. United States, 336 A.2d 545, 547 (D.C.1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 793, 46 L.Ed.2d 648 (1976), see D.C. Code § 17-305(a) (1981). Applying this standard to the evidence in the record, we uphold the trial court’s conclusion that the government’s inability to produce the Jencks Act material was not the result of gross negligence.

The decision as to appropriate sanctions for missing Jencks Act material is left to the discretion of the trial court, and we will reverse only if confronted with an abuse of that discretion. Montgomery v. United States, 384 A.2d 655, 662 (D.C.1978). Appellant’s principal attack at oral argument was on the form of the “missing evidence” instructions used by the trial court.¹¹ The trial court instructed the jury if it found that the failure of the officers to produce these notes “has not been sufficiently accounted for or explained” then the jury might, if it deemed it appropriate, “infer that the notes would have been unfavorable to the government.” Appellant argues that the trial court should have instructed the jury that the loss was indeed the result of negligence (i.e., had “not been sufficiently accounted for or explained”)¹² and that it must infer that the missing evidence would have been unfavorable to the government. We have, however, previously indicated that a missing evidence instruction, along the line suggested in Bun-dy that a jury is “free to infer” unfavora-bility, can be appropriate in the Jencks Act context. Earl Jones v. United States, 343 A.2d 346, 352 (D.C.1975). See United States v. Peters, 190 U.S.App.D.C. 370, 379, 587 F.2d 1267, 1276 (1978) (missing evidence instruction approved very similar to that used in case at bar).¹³ We cannot say that the trial court abused its discretion in the fashioning of sanctions by wording the instructions as it did.

Affirmed.

1 . Appellant also contends that the court improperly foreclosed cross-examination of Beach on a possible reason for bias. We find no reversible error. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

2 . The issue of the Bradley notes first arose following Evans' testimony as to the next to last witness at the pretrial hearing. The prosecutor undertook to determine whether Bradley had taken any notes at all. The next day the prosecutor in discussion prior to the trial court’s ruling informed the court that Bradley, who was out of town, had told her the notes were in his desk, that a search of the desk had been unable to locate the notes, and that therefore, "we will have to presume at this point, for lack of any better information, that we do not have those notes."

3 . Both Stowe and Bradley testified they were aware of the police general order on preservation of potentially discoverable material (which required that such material be placed in an investigative jacket case folder where practicable, and if not, in an envelope or other appropriate container, to be logged in).

4 .The court’s original ruling was made just before lunch. When the court reconvened in the afternoon, the prosecutor reported that a significant problem with respect to the photo array had come to her attention during the noon hour. As a result, further testimony was taken from Stowe and another witness. The trial court revisited the Jencks issue and, following the concession of the government, expanded its initial ruling to bar use by the government of the photo array identifications.

5 . Such an instruction was first suggested by Judge Leventhal, concurring, in United States v. Bundy, 153 U.S. App.D.C. 191, 194, 472 F.2d 1266, 1269 (1972) (jury "free to infer” that missing evidence would have been helpful to defendant).

6 . He noted, inter alia, "I think for purposes of this motion I must assume that [Detective Bradley’s notes] cannot be found, and have not been accounted for, although I think that issue may still be open.” He then directed the government to search further and advise how the notes came to be lost.

7 . Bradley was unsure as to how his notebook had disappeared but theorized that it vanished when he changed desks at the police station.

8 . For instance, in her opening statement, appellant’s counsel mentioned that three crime-scene descriptions of the suspects had been given "to the two police detectives who were in charge of investigating the robbery, those descriptions were written down by the detectives in notes, and those notes are not here, those notes are missing.”

9 . At the close of the initial pretrial ruling, this colloquy had occurred:

THE COURT: Counsel for the Defense, did I miss any area you wish I should rule on that I didn’t actually cover? For appellate purposes, I think all of those issues are covered.

[COUNSEL FOR APPELLANT]: I believe everything has been covered.

THE COURT: If you need a supplement finding in some area, you can ask for it.

10 . If more was involved, striking would have been mandatory. United States v. Jackson, 450 A.2d 419, 427 (D.C.1982).

11 . Appellant also attacks the sanction limiting use by the government of the photo array. While this action may have presented problems with defendant’s use of the evidence, it does not follow that it was meaningless. Moreover, it appears that in any event, appellant got before the jury a major point he wished to make with respect to the showing of appellant’s photo to the witnesses.

In a broader sense, appellant attacks the inadequacy overall of the sanctions imposed in this case, taking into account the "totality of circumstances.” Montgomery v. United States, supra, 384 A.2d at 662.

12 . Appellant asserts that this phrase gives the jury the option to negate the trial court’s finding of negligence. Assuming this is so, the effect of a missing witness instruction in a Jencks Act situation is to involve the jury in the matter, and whether to refer this particular aspect to the jury is but part of the trial court's overall discretion. In fact, the trial court in the portion of

13 . Cf. Reed v. United States, 383 A.2d 316, 320 (D.C.), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978) (missing evidence instruction assumed to be a permissible sanction, although its logic questioned).